South Africa: landmark ruling on right to sanitation ends Cape Town “toilet wars”

With a high court ruling supporting South Africa’s constitutional right to sanitation, Cape Town’s “brutal – and farcical – toilet wars” have come to an end. Protesters from the Makhaza neighbourhood of the black township Khayelitsha, that was at the centre of the dispute, greeted the court decision with cheers.

On 29 April 2011, the Western Cape High Court ruled that the city government must build enclosures around government-provided toilets in Makhaza, ending a two-year dispute that had become a heated political issue between the country’s two largest political parties.

It might seem like a small matter, but with local elections planned for May 18 [2011] across the country, the court decision is likely to become a matter of national political discussion, if not significance. Cape Town is run by South Africa’s second-largest political party, the Democratic Alliance (DA), an opponent of the ruling African National Congress (ANC)

The dispute began in 2009, when the Cape Town authorities installed 1,316 open toilets in Makhaza and other informal settlements in the Khayelitsha township on the condition that local residents build their own enclosures. The city authorities claimed that they were actually only obliged to build communal toilets but had sought to extend sanitation services to every household within available budgets. Nearly all residents built walls around their toilets, but 51 residents said they couldn’t afford them and demanded that the city pay the bill.

As a compromise, the city government attempted to build corrugated tin structures around the remaining 51 toilets last year, but members from the ANC Youth League routinely tore them down, turning the toilet tiff into a political showdown. The matter inevitably became a matter of some embarrassment for the DA and a cause célèbre for the ANC.

Justice Nathan Erasmus of the Western Cape High Court called the living conditions of the Makhaza residents “shocking” and ordered the city to enclose all the toilets which form part of the Silvertown Project, Khayelitsha (which includes those erected in the Makhaza informal settlement).

Examining the agreement which lead to the toilets being erected, Judge Erasmus found that municipal officials had not consulted sufficiently with residents by speaking to only 60 of the 6 000 people who would be affected by the toilet scheme.

“The requirement of engagement flows from the need to treat residents with respect and care for their human dignity… The alleged agreement made no provision for those who were unemployed and poor and could not fund the enclosure of their own toilets.”

Judge Erasmus said “reference to a vague agreement is simply not good enough”.

“The city is bound by the prescripts of the (National Housing) Code and the Constitution and according must ensure that community participation and negotiated agreements that are entered into, are consistent with the prescripts of the Code. This is patently absent here.”

He also pointed to the fact that many of the toilets which were enclosed by residents were done so with “whatever, often mixed, materials that could be found. Most of the self-enclosed toilets were unsatisfactory to satisfy dignity and privacy”.

Justice Erasmus criticised both the DA-run City of Cape Town and the ANC Youth League (ANCYL) for politicising the toilet issue at the expense of community members. He said that mayor Dan Plato and ANCYL member Andile Lili “simply failed to rise above their political contest as opposed to their duty towards those that need to benefit – the poor and vulnerable”.

Gavin Silber, who works with the Social Justice Coalition NGO in Khayelitsha, agreed that the community suffered unnecessarily as a result of the political battle.

“We called for a productive solution. It’s clear that people were pushing their political agendas on both sides. This is close to elections. It shouldn’t become ammunition. The needs of the community must come first,” he said.

Silber also said, “it is clear there is confusion about what the policy is around sanitation. There is a lot of confusion around what constitutes basic sanitation” .

The NGO recently held a demonstration in Cape Town in which more than 2 000 people queued for a toilet at the mayor’s office to protest at the state of sanitation in Khayelitsha, Silber said.

In an official reaction the DA said it accepted the finding of the court and “will now move forward and continue upgrading informal settlements, within the limits of the national housing code” and that will “try again” to enclose the toilets.

Even though Mayor Erasmus said he would comply with court’s judgement and install the toilet enclosures, a date had not yet been set. He said that the ruling was unclear about the time frame and the type of structure that had to be erected. Mayor Erasmus added that the city has also not decided whether to appeal against the judgement. In the meantime, the Western Cape ANC called on Western Cape Premier and Democratic Alliance (DA) leader Helen Zille to step down following the Makhaza court ruling.

Read the full text of the Western Cape High Court ruling ZAWCHC 97 “Beja and Others v Premier of the Western Cape and Others“, 29 April 2011

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